The Petitioner, a direct care worker, seeks second preference immigrant classification as an individual of exceptional ability, as well as a national interest waiver ofthe job offer requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) section 203(b)(2), 8 U.S.C. § 1153(b)(2).
The Director of the Nebraska Service Center denied the petition, concluding that the Petitioner had not established her eligibility as an individual of exceptional ability and that a waiver of the required job offer, and thus ofthe labor certification, would be in the national interest.
On appeal, the Petitioner asserts that she is eligible for exceptional ability classification and for a national interest waiver. In these proceedings, it is the petitioner's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Upon de novo review, we will dismiss the appeal.
Law
To establish eligibility for a national interest waiver, a petitioner must first demonstrate qualification for the underlying EB-2 visa classification, as either an advanced degree professional or an individual of exceptional ability in the sciences, arts, or business. Because this classification requires that the individual's services be sought by a U.S. employer, a separate showing is required to establish that a waiver of the job offer requirement is in the national interest.
Section 203(b) of the Act sets out this sequential framework:
(2) Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability. -(A) In general. - Visas shall be made available . .. to qualified immigrants who are members of the professions holding advanced degrees or their equivalent or p. 2 who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare ofthe United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
(B) Waiver ofjob offer-
(i)Nationalinterestwaiver.... [T]heAttorneyGeneralmay,whentheAttorney General deems it to be in the national interest, waive the requirements of subparagraph (A) that an alien's services in the sciences, arts, professions, or business be sought by an employer in the United States.
The regulation at 8 C.F.R. § 204.5(k)(2) contains the following relevant definitions:
Exceptional ability in the sciences, arts, or business means a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.
In addition, the regulation at 8 C.F.R. § 204.5(k)(3)(ii) sets forth the specific evidentiary requirements for demonstrating eligibility as an individual of exceptional ability. A petitioner must submit documentation that satisfies at least three of the six categories of evidence listed at 8 C.F.R. § 204.5(k)(3)(ii).
Furthermore, while neither the statute nor the pertinent regulations define the term "national interes~" we set forth a framework for adjudicating national interest waiver petitions in the precedent decision Matter of Dhanasar, 26 I&N Dec. 884 (AAO 2016). 1 Dhanasar states that after a petitioner has established eligibility for EB-2 classification, U.S. Citizenship and Immigration Services (USCIS) may, as matter of discretion , grant a national interest waiver if the petitioner demonstrates: (1) that the foreign national's proposed endeavor has both substantial merit and national importance; (2) that the foreign national is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification.
The first prong, substantial merit and national impmiance, focuses on the specific endeavor that the foreignnationalproposestoundertake. Theendeavor'smeritmaybedemonstratedinarangeofareas such as business, entrepreneurialism, science, technology, culture, health, or education. In determining whether the proposed endeavor has national importance, we consider its potential prospective impact.
The second prong shifts the focus from the proposed endeavor to the foreign national. To determine whether he or she is well positioned to advance the proposed endeavor, we consider factors including, but not limited to: the individual's education, skills, knowledge and record of success in related or Inannouncingthisnewframework,wevacatedourpriorprecedentdecision,MatterofNew YorkStateDepartmentof Transportation, 22 I&NDec. 215 (Act. Assoc. Comm'r 1998) (NYSDOT).
See also Poursina v. USCJS, No. 17-16579, 2019 WL 4051593 (Aug. 28, 2019) (finding USCIS' decision to grant or deny a nationalinterestwaiverto be discretionaiy in nature). p. 3 similar efforts; a model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals.
The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the UnitedStatestowaivetherequirementsofajobofferandthusofalaborcertification. Inperf01ming this analysis, USCIS may evaluate factors such as: whether, in light of the nature of the foreign national's qualifications or the proposed endeavor, it would be impractical either for the foreign national to secure a job offerorforthepetitionerto obtain a labor certification; whether, even assuming that other qualified U.S. workers are available, the United States would still benefit from the foreign national's contributions; and whether the national interest in the foreign national's contributions is sufficiently urgent to wan-ant forgoing the labor certification process. In each case, the factor(s) considered must, taken together, indicate that on balance, it would be beneficial to the United States Because she has not indicated or established that she qualifies as a member ofthe professions holding an advanced degree, the Petitioner must meet at least three of the regulatory criteria for classification as an individual of exceptional ability. See 8 C.F.R. § 204.5(k)(3)(ii)(A)-(F). In denying the petition, the Director determined that the Petitioner did not fulfill any of the regulatory criteria. On appeaL the Petitioner maintains that she satisfies three criteria. After reviewing the evidence, we conclude that the record does not supp01i a finding of her eligibility for at least three criteria.
An official academic record showing that the alien has a degree, diploma, certificate, or similar award.from a college, university, school, or other institution o f learning relatingtotheareaofexceptionalability. 8C.F.R.§204.5(k)(3)(ii)(A).
At initial filin , the Petitioner resented a document entitled, "Diploma," reflecting that she "entered in 1986 to the named after academician! Iand in
1988completedthefullcourseofstudiesat~---------~having specializedinNursing" and "[b]y the decision fo the State Examination Commission ofJuly 9, 1995 she is qualified as a hosptial nurse." In addition, the Petitioner offered a document entitled, "Certificate," showing that "[t]his is to certify that [the Petitioner] finished training course 'DOTS-strategy oftuberculosis-fighting' organized by Scientific Research Institute ofphthisiology ofprophylaxis and ProjectHOPE, under financial support ofUSAID."
The Director issued a request for evidence (RFE), acknowledged the submission of the evidence, and stated that "it does not appear to be from a college, university, school, or other institution oflearning" In addition, the Director requested the Petitioner to "submit evidence to establish that the granting entity is recognized as a college, university, school, or other institution ofleaming" and provided definitions of the entities. In response, the Petitioner provided an "Evaluation Report of Academic Records" from Evaluation Services, Inc. opining that the "diploma is the academic equivalent of an associate of applied science degree in nursing from a regionally accreddited community/junior college in the United States." to waive the requirements of a job offer and thus of a labor certification.
Analysis
SccDhanasar, 26l&NDec. at 888-91, for elaboration onthesethreeprongs.
The Petitioner did not offer evidence regarding "DOTS-strategy of turberculosis-fighting" training course. In denying the petition, the Director determined that the Petitioner did not submit the requested evidence. Specifically, the Petitioner offered an academic evaluation report rather than"evidence to establish that the granting entity is recognized as a college, university} school, or other institution of learning." On appeal, the Petitioner submits screenshots froml relating to I I However, we will not consider this evidence for the first time on appeal as it was not presented before the Director.Evidence submitted too late SeeMatterofSoriano,19I&NDec.764,766(BIA1988)(providingthatif"thepetitioner was put on notice of the required evidence and given a reasonable opportunity to provide it for the record before the denial, we will not consider evidence submitted on appeal for any purpose" and that "we will adjudicate the appeal based on the record ofproceedings" before the Chief); see also Matter ofObaigbena, 19 I&N Dec. 533 (BIA 1988).
Without evidence of official academic records from a college, university, school, or other institution of learning, the Petitioner has not sufficiently shown that she meets this criterion.
Evidence in theform ofletter(s)from current orformer employer(s) showing that the alien has at least ten years offull-timeexperiencein the occupationforwhichhe or she is being sought. 8 C.F.R § 204.5(k)(3)(ii)(B).
At initial filing, the Petitioner provided a document entitled, "Employment Book." The Director informed the Petitioner in the RFE that the document "is insufficient because it is not an official letter from the [Petitioner's] past employer, it does not include the [Petitioner's] duties, part-time or full- time statusorthestartandenddateofemployment." Inaddition,theDirectorinstructedthePetitioner to submit "[e]mployment verification letters on official employer letterhead from the Human Resources Department, or other equivalent department authorized by the employer to verify employment" stating the "[d]ates of employment" and"[s]tatement of the duties performed while in the position."
In response, the Petitioner offered a letter froJ JManager, and.l..._ _ _ _ _ __.I Human Resources. Indenyingthepetition,theDirectordetermined:
Furthermore, the regulation at 8 C.F.R. § 204.5(k)(3)(ii)(A) requires "[a]n official academic record." The Petitioner, however, did not establish how the presented "Diploma" and "Certificate" represent "official academic record[s]" consistent with this regulatory criterion. Here, the Petitioner did not show that she provided official academic records from the organizations, nor did she demonstrate that the entities qualify as "a college, university, school, or other institution of learning" pursuant to this regulatory criterion.
Sec also 6 USCJS Policy Manua!F.5(B)(2), https://www.uscis.gov/policymanual.
This letter is insufficient because it does not establish a full ten years of employment or state the dates of employment such as start and end dates, it does not state if the job is a full-time or part-time status, it does not describe the [Petitioner's] duties and is not of official employer letterhead.
On appeal, the brief claims that "[p]lease be advised that [the Petitioner] has well over 10 years experience in her field of endeavor" and "[b]ased on documentation in the record, the [Petitioner] established that this criterion has been met, and US CIS erred in finding othe1wise." The Petitioner, however, does not identify specifically any erroneous conclusion of law or statement of fact in the Director's decision regarding this criterion. For the reasons articulated, we agree with the Director that the letter does not demonstrate probative evidence to show that the Petitioner has at least ten years of full-time experience in the occupationforwhichheorshe is being sought consistent with the regulation Accordingly, the Petitioner did not show that she meets this regulatory criterion.
Evidence o frecognition/or achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations. 8 C.F.R. § 204.5(k)(3)(ii)(F).
ThePetitionerdidnotprovideanyevidenceforthiscriterionatinitialfiling. InresponsetotheRFE,1he Petitionerprovidedtworecommendationletters. TheDirectordetermined:
The authors ofthe petitioner's letters do speak highly ofher work ethnic and contribution to her employer and client, but they do not describe the type of significant contribution requiredbythiscriterion. Thistypeofevidencedoesnotdescribethetypeofwidespread influence or impact that would indicate that the petitioner's contribution has been significant. Tosuccessfullymeetthiscriterion,thepetitionershouldsubmitdocumentary evidence that shows that her contribution is significant, and that it is felt beyond 1he confines ofher immediate employment.
The appeal briefcontends that" [t]he [Petitioner] has providedrecommendation letters clearly establishing recognitionforherachievementsandsignificantcontributionsto herfieldofendeavorbyherpeers." The Petitioner, however, does not identify those achievements and contributions, and exrain how they have at 8 C.F.R. § 204.5(k)(3)(ii)(B). been recognized and significant. The record contains a letter froni who stated:
I have known [the Petitioner] since January 2020. Over the course ofthis period she has demonstrated that she is a very honest, reliable, and kind person. [The Petitioner] occasionally assists me with my housework, including cooking, cleaning, and doing laundry. She has a very kind, outgoing personality, a great sense of compassion and goodwill. In the time she has worked with me we have become very close and I have a lot of trust and confidence in her abilities. It is a great pleasure to be acquainted wi1h [1he Petitioner]. Shemakesmylifealoteasierandisaveryimportantpartofmyteam.
The letter from"-1_ _ _ _ _____.I stated:
much needed in this line of work. She has received many compliments from our consumers and their family members, as well as supervisors and peers. I am continually impressed by [the Petitione1J Wenotethatbothlettersindicateeventsoccurringafterthefilingofthepetition. Eligibility,however, mustbeestablishedatthetimeoffiling. See8 C.F.R. § 103.2(b)(l). Moreover, theregulationat8 C.F.R § 204.5(k)(3)(ii)(F) requires"[e]vidence of recognition for achievements and significant contributions Without sufficient evidence demonstrating that the Petitioner has been recognized for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations, she has not established that she meets this criterion.
Conclusion
The Petitioner did not establish that she satisfies at least three ofthe criteria at 8 C.F.R. § 204.5(k)(3)(ii). As a result, we need not provide a final merits determination to evaluate whether the Petitioner has to the industry or field." characteristics, they do not identify her achievements and contributions to the industry or field. Moreover, the letters do not show that the Petitioner has been recognized for her achievements and that her contributions have risen to the level of significance as required by this regulatory criterion.
While the letters praise the Petitioner's personal and professional achieved the required level of expertise required for exceptional ability classification.